Sufficiency of the evidence to support convictions of possessing crack cocaine with the intent to distribute, FIP, & possessing a firearm in furtherance of a drug-trafficking crime; Constructive possession; Jury instructions on third-party guilt; Sixth Circuit Pattern Criminal Instruction (PCJI) 8.08(2); Expert testimony; FRE 702(a); Other acts evidence; FRE 404(b); Instagram images; FRE 403; Cumulative error; Prosecutorial misconduct; Witness intimidation; Closing remarks

The court held that there was sufficient evidence to support the jury’s determination that defendant-Fairley constructively possessed the drugs and firearms in a car and intended to exercise dominion and control over them. It also rejected his challenges to a third-party guilt jury instruction and the district court’s evidentiary rulings, and his prosecutorial misconduct claim. A jury convicted Fairley of possessing with the intent to distribute crack cocaine, FIP, and possessing a firearm in furtherance of a drug-trafficking crime for dealing drugs in a convenience store parking lot. He argued that there was insufficient evidence to support his convictions. The drugs and firearms were found in a car where Fairley was sitting. He argued they belonged to a third party. The government offered evidence that the contraband was discovered in the center console right next to Fairley. He had initially admitted to selling marijuana after a law enforcement officer told him that he had seen him conduct hand-to-hand transactions. Marijuana as well as crack was found in the console. Thus, it was reasonable to conclude that if he knew the marijuana was in the console, he also knew of the crack, and constructively possessed it. The firearms were clearly visible “on top of the center console area, to Fairley’s immediate left, within arm’s reach.” In addition, he “had a history of exercising dominion and control over the” car. He next argued that the third-party guilt jury instructions confused the jury. His “defense centered on the theory that” another person (W) alone, or someone else with access to the car, possessed the contraband. The district court gave PCJI 8.08(2). The court concluded that “the instruction operated as it should; it ensured that Fairley would neither be held responsible for someone else’s conduct nor excused of his own.” It also found no abuse of discretion in the district court allowing a police officer to testify as an expert regarding the drug trade. Further, the court upheld the district court’s decision to admit Fairley’s statements to a police officer about his prior drug trafficking and firearms possession under Rule 404(b) where it showed that Fairley had crack distribution locations that were already set. The court found that any evidentiary error was harmless. Finally, it determined there was no prosecutorial misconduct. Affirmed.